Tobacco Firms Want Federal Court Decision Delayed

MICHAEL FELBERBAUM | AP Tobacco Writer

RICHMOND, Va. (AP) – America's largest cigarette makers said Tuesday that the federal judge presiding over a decade-old lawsuit against the tobacco industry should delay her decision while other cases challenging new tobacco regulations are decided. The Justice Department, however, argued the case should move forward expeditiously.

U.S. District Judge Gladys Kessler in Washington had ordered the parties to submit their views on whether to delay a decision in the case in which she found the companies – including Philip Morris USA, maker of top-selling Marlboro cigarettes – masked the dangers of smoking.

Kessler had noted that the corrective advertising that the Justice Department wants the industry to be required to pay for under her 2006 ruling are "significantly different from the verbal and pictorial advertisements" required by the Food and Drug Administration under new authority it gained in 2009.

Tobacco companies also have brought two newer cases challenging regulations the FDA proposed using that new authority.

Kessler has said she wants the industry to pay for various types of ads, both broadcast and print, but she has not said what the statements should say, where they must be placed or for how long.

That's the decision she's considering delaying.

In their response Tuesday, the tobacco companies said the government's proposed corrective statements would likely be subject to many of the same objections being raised in newer challenges to federal tobacco regulations. Meanwhile, the Justice Department argued in its filing that postponing a decision would not be in the public interest because it would harm smokers, potential smokers and young people.

The government's proposed corrective ads would cover the addictiveness of nicotine, the lack of health benefits from "low tar," ''ultra-light" and "mild" cigarettes, and the dangers of secondhand smoke. The companies have argued the statements are inflammatory, inaccurate and "designed solely to shame and humiliate" the companies.

The FDA's new marketing restrictions include cigarette warning labels featuring images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, the corpse of a dead smoker, diseased lungs and a smoker wearing an oxygen mask.

Tobacco companies are increasingly relying on their packaging to build brand loyalty and grab consumers. It's one of few advertising venues they can use after the government curbed their presence in magazines, billboards and TV. The companies have said the graphic labels could cost them millions of dollars in lost sales and increased packaging costs.

In November, a federal judge blocked the requirement that would have begun forcing tobacco companies next year to put the images on their cigarette packages and in advertisements.

Another case the tobacco companies filed over the marketing restrictions is pending before the U.S. 6th Circuit Court of Appeals in Cincinnati after a judge in Kentucky upheld most of the marketing restrictions.